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"Copyright whistleblower" was unfairly dismissed, tribunal rules.

29 June 2006 - EPUK

A tribunal has awarded £26,000 to Jewish News staff photographer David Katz who was unlawfully dismissed after revealing alleged management-endorsed systematic breaches of copyright at the title.

In making the judgement, the tribunal rejected Jewish News’ defence that he was sacked as part of unrelated cost-cutting at the title. David Katz, a staff photographer at the publication since 1999 who formerly freelanced for the Daily Mail and Daily Mirror, has been awarded a total of £26,462.

The tribunal heard Katz allege the title had a deliberate policy of stealing pictures for use in the paper, a view shared by the former picture editor and the former production editor at the newspaper, both of whom also gave evidence.

Jewish News, owned by publisher Totally PLC, is a free weekly title with a circulation of 30,000. Totally, which employs around 43 people, also owns the US-based Jewish Advocate newspaper, and the TotallyJewish branded websites and in its interim financial statement for 2005 reported losses of £300,000 on a turnover of £2.7million.

Katz told the tribunal that he was assured that his job was safe in May 2005 at a time when five of his colleagues, including his picture editor Mark Obstfeld, were made redundant. The tribunal heard Katz was then offered a newly created job of joint picture editor/photographer at a meeting with Totally PLC Chief Executive Steve Burns and Managing Director Dan Assor. However, two days after he was due to take up the new post, and after three weeks of training under Obstfield he was informed by Burns that he was being made redundant.

Stealing pictures “company policy”

According to Dan Assor, the redundancy was made because the joint role was found to be not financially viable. However, the tribunal found in favour of Katz who maintains that he was sacked because he had told Burns that he would refuse to continue an alleged long-standing company practice of unlawfully downloading and reproducing low-resolution images from the internet, including the online archives of Reuters, AP, PA and Getty, to avoid paying for a licence to use them.

At the tribunal, Steve Burns denied any knowlege of any such copyright infringements. Katz claims that he had repeatedly objected to the alleged copyright infringement policy since Totally took over the then “London Jewish News” in 2000.

Speaking to EPUK after the verdict, Katz said “I raised the issue very shortly after we were bought out by Totally PLC in late 2000 when we were told this procedure was company policy and if we didn’t like it we could f*** off.”


David Katz: sacked after allegedly refusing to continue a policy of copyright infringement

In evidence to the tribunal, Katz alleged “From the time that London Jewish News merged with Totally nearly five years ago we were informed that this is the way things are done at Totally, and it was common knowledge within the company that we very rarely pay for pictures if they can be stolen instead.”

Katz originally brought this to the attention of Dan Assor in December 2004, when he alleges he was told that Assor would investigate further. Katz says that when he brought up the subject again in May 2005 the Totally MD allegedly told Katz ”...not to worry about this as it was not my problem and if we were sued (as I said we would be one day) then it would be the responsibility of the management and not mine”. Katz also alleged that Assor said “national papers [reproduce pictures without payment] all the time.”

This was supported by evidence given to the tribunal by Marc Silver, a former production manager at Totally. “I knew that [Managing Director] Dan Assor, [Chief Executive] Steve Burns and [former board member] Dan Levitt, all knew about the illegal practices of the downloading of pictures and had authorised it and that all picture editors and other employees had to allow it. I remember a particular conversation with Dan Levitt and Mark Welland when a photograph was needed. Mark Welland raised the question of buying a picture to which Dan Levitt told him not to be ridiculous and told him that was not what was done there. ”

Copyright infringements “authorised by management”

Former picture editor Mark Obstfeld told the tribunal: “From the moment I joined the company in August 2003, I had discovered that the Jewish News and Totally were in constant breach of copyright with regard to repeated picture usage from various agencies without purchasing repeating rights. This process had been shown to me by my predecessor.”

“This illegal copying of pictures had never concerned senior management, who had been well aware that our process was in breach of copyright. The company’s only interest was in saving money. The process itself was taught to me by my predecessor and had been occurring for some years prior to this. Indeed, it had been shown to her by her predecessor. David Katz had registered his unease about this on numerous occasions. ”

“Shortly before David Katz was dismissed , Dan Assor emailed me to suggest ways of employing the best practice with regard to the buying of pictures”

“My feeling was that Mr Assor had perhaps realised that the company was open to legal action from any one of the numerous agencies (Reuters, AFP, Getty, AP, PA and others) whose services we used. At that point I was puzzled as to what had caused the sudden change of heart, as he had full knowledge of what I had been made to do. It was only after I discovered that David had been dismissed that I realised why Mr Assor was so concerned about the theft of pictures from the previously mentioned companies. At this point I became concerned for myself as I realised they might try to blame me, saying I had undertaken the illegalities on my own without their knowledge, which I am now aware is what they have tried to do.”

“Anyone at the company can confirm that it was common knowledge amongst production, editorial and senior management staff that the picture editor was expected to steal pictures wherever possible, and re-use previously bought pictures beyond the limits of the agreed licenses. ”

“I would reiterate that the practice of downloading photographic images without paying for repeat usage was authorised and specified by management and never by myself of our own instigation. We were instructed to do so by senior management and as an employee I felt I could not object.”

“The only thing I refused to do was steal pictures.”

Speaking to EPUK, Katz said: “The company had known about the copyright infringements for a substantial period of time. Whenever I was standing in for the picture editor, I paid for every single picture we used, but I was told off by [then managing editor] David Garfinkle for taking the cost of pictures three times higher than the weekly picture budget”

During the tribunal, Katz claimed that chief executive Steve Burns told him in June 2005 “If you ever repeat this in a court of law, I will call you a f***ing liar, but yes we are making you redundant.” Burns denied the allegation.

Katz told EPUK “The only thing I refused to do was steal pictures. I was always willing to work out a way of doing the job to the best of my abilities as I have always done. If I wouldn’t have questioned anything and kept my head down, I would still have a job.”

Katz also praised his solicitors Cooper Whiteman. Speaking to EPUK, his solicitor Bella Kalisch said the judgement had vindicated her client’s unfair dismissal claim, and that the tribunal’s verdict established that he was sacked because of his honourable stand on the copyright issue.

In making its judgement, the tribunal ruled that by bringing the alleged copyright infringement policy to the attention of senior management, Katz became a de-facto “whistleblower”, and that his objection to the alleged copyright breaches was the principal reason for his sacking. However, industrial tribunals do not make any judgement as to the specific allegations made by any whistleblower, only whether the whistleblower was reasonably entitled to suspect criminal activity within their company and that the allegations were made in good faith.

While Reuters declined to officially comment on the case, EPUK understands that the news organisation is aware of the allegations and has been following the case with interest.

A spokesperson for Getty Images told EPUK: “We are looking into the usage of our imagery with Jewish News, who are an existing client of ours and purchase regularly from Getty Images.”

“We vigilantly protect the licensing of our imagery and pursue users who do not adhere to our licensing policy.”

The share price of Totally has fallen by around 14% in the last year, and while the internet side of the business was believed to be profitable, the Jewish News was understood to be loss-making. The 2004 financial report reports that in that year the directors of the company were paid a total of £323,000 in salaries, bonuses and benefits while the company made a loss of £304,000.

A spokesperson for Totally PLC said that senior management could not be contacted to comment on the copyright allegations at the time of going to press.

Want to contact the EPUK Website editor? editor@epuk.org

Comments

Why am I not surprised? Last year, I settled with an Israeli newspaper after I found one of my images online without payment or permission. UK newspapers are tardy in the extreme regarding self reporting and it would appear that only when they are caught by photographers do they actually pay up.

Comment 1: Sheila Smart, 7 May 2012, 02:09 AM

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